Labour Court Database __________________________________________________________________________________ File Number: CD8918 Case Number: AD8921 Section / Act: S13(9) Parties: UNIVERSITY COLLEGE DUBLIN - and - FEDERATED WORKERS UNION OF IRELAND |
Appeal by the University against Rights Commissioner's Recommendation No. ST 366/88.
Recommendation:
6. The Court is satisfied that the Rights Commissioner acted
correctly in investigating this dispute in that it was concerned
with promotion and the manner in which applications for promotion
are dealt with. The Rights Commissioner was not entitled to treat
with rates of pay arising from any recommendation he might make on
the matter in dispute.
Having considered the submission from both parties and in
particular noting that no vacancy for a Grade 1 exists and that
there is no automatic progression between the grades, the Court is
of the view that the appeal made by the College is well founded.
The Court accordingly upholds the appeal and so decides.
Division: Ms Owens Mr McHenry Mr Devine
Text of Document__________________________________________________________________
CD8918 APPEAL DECISION NO. AD2189
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: UNIVERSITY COLLEGE DUBLIN
and
FEDERATED WORKERS UNION OF IRELAND
SUBJECT:
1. Appeal by the University against Rights Commissioner's
Recommendation No. ST 366/88.
BACKGROUND:
2. The two workers involved in this dispute are employed as
archivists grade 2 in the Department of Irish Folklore in U.C.D.
In 1983, resulting from an agreement on behalf of archivists
between management and the union, the number of archivists in the
College was increased from six to nine, which included a new grade
of archivist grade 1 (four positions). The grades of archivist 1
and 2 were then linked directly to the assistant librarian 1 and 2
grades. Currently there are six archivists remaining, four at
grade 1 level, plus the two workers here concerned who are at
grade 2.
3. In December, 1985 the Union served a claim on the College for
the creation of a new promotional structure for archivists. At a
conciliation conference held in 1987, management rejected the
Union's claim but agreed to consider a claim for the Up-Grading of
the two archivists here concerned from archivists 2 to archivist
1. Subsequently, the union was informed by management that the
matter of the workers Up-Grading would have to be dealt with by
reference to the non-Academic Promotion Committee. In June, 1988,
the two archivists here concerned applied for promotion to grade
1. The four grade 1 positions were filled at the time, and
therefore the College contended that no vacancy existed. The
workers' application for promotion was considered by the College
sub committee on administrative and secretarial salaries and
promotions. On 20th June, 1988, the College wrote to the workers,
indicating to them that they had been unsuccessful. The Union, on
behalf of the workers, referred their case to a Rights
Commissioner for investigation. On 20th October, 1988 the Rights
Commissioner issued the following recommendation on the matter:
"I agree with the sentiments expressed by the College
representative in regard to a Job Evaluation Exercise by a
third party. However in an industrial relations context, I
share the Union's view that the Sub-Committee system is far
from perfect, although generally, it has worked well in the
past.
The lack of an appeals procedures is an obvious flaw. The
lack of direct representation and advocacy for a claimant
also seems strange in a purely Industrial Relations context.
I would also have reservations in regard to the fact that no
reasons are advanced for the decisions taken. How then can a
candidate hope to improve his performance or his
qualifications in order to achieve his desired status as
claimed? I would recommend that the College examines these
matters further in particular regard to appeals by
non-academic staff members.
On the evidence presented I recommend that (Worker A) claim
succeeds. He has been on the top of his scale for some
years. It seems to me that his duties and responsibilities
are at least equal to the existing Grade I's. He should now
be moved on to the next point (#15,461) of the Archivist I
Scale at his next anniversary date.
(Worker B) has not yet reached the tope of the Grade II
scale. I recognise that his duties have increased. However
I feel he must wait a little longer for progression to Grade
I. I recommend that he should again in the future, make an
application to the Sub-Committee for a review. In the event
that he fails in his claim, he should wait until he reached
the maximum of Grade II when he should invoke an industrial
relations avenue to pursue his claim further."
The College was not satisfied with this recommendation, and on
21st December, 1988 it lodged an appeal against the Rights
Commissioner's recommendation. At the hearing of the appeal which
took place on 17th February, 1989 the College questioned the
jurisdiction of the Rights Commissioner to issue a recommendation
on the matter because of the fact that the matter had implications
for rates of pay. The Court took legal advice on the College's
complaint prior to arriving at its decision.
UNION'S ARGUMENTS:
4. 1. The work performed by the two archivists here concerned is
at least of equal value to that being performed by other
archivists 1 in U.C.D. This has not been disputed by
Management. Both applicants for up-grading are strongly
supported by their Head of Department, who wrote to the
College Secretary, in June, 1988 to say "I have no hesitation
in giving both applications my full support."
4. 2. The College lodged no objection to the Rights
Commissioner's recommendation either at the hearing or
subsequently. It should not now have the right to object on
these grounds. The argument that the two archivists should
not be promoted because there is no vacancy is based on the
false premise that there is a quota in existence. No such
quota was agreed by the Union
COLLEGE'S ARGUMENTS:
5. 1. The Rights Commissioner in his recommendation stated that
no reasons are advanced for the decisions taken by the Sub
Committee on Administrative and secretarial salaries and
promotions and that there is no appeal procedure. In fact
criteria for promotion have been agreed with a union
representing many administrative/secretarial staff and reasons
for decisions taken by the Committee are provided if
requested. Furthermore, any staff member may appeal to a
second meeting of the Committee held in September against a
decision reached by the Committee in June. After the June
meeting at which the archivists' cases were considered another
candidate for promotion lodged an appeal. That appeal was
rejected at the September meeting and at the candidate's
request the reasons for the decision were made known to her.
2. No vacancy exists for a grade 1 position; therefore there
cannot be a promotion. When the four grade 1 posts were
established it was envisaged that there would be a ratio of
four grade 1's to five grade 2's. In practice the ratio is
four grade 1's' to only two grade 2's. The duties and
responsibilities of an archivist are basically the same as
they were in 1983 when agreement was reached. The College
considers that there is no justification whatsoever for the
creation of two additional grade 1 posts at this time.
3. The Union's argument has been that the claimants have the
necessary experience and qualifications to warrant grade 1
status. That may be the case but it is not the issue in
question. If they have the necessary qualifications etc., it
means that they would be entitled to be considered for
promotion when a vacancy arises. The agreement in 1983
established four positions. It did not simply extend the
existing scale to allow for progression from grade 2 to grade
1 after a certain amount of experience or service had been
accumulated.
4. The archivists grades 1 and 2 are related to the assistant
librarian grades 1 and 2. Movement from assistant librarian
grade 2 to assistant librarian grade 1 occurs only when there
is a vacancy to be filled at grade 1 level. Regardless of
experience, qualifications or service, an assistant librarian
grade 2 will not progress to grade 1 unless a vacancy exists
and he/she is successful in competition with other assistant
librarians.
5. 5. There are two distinct archivists grades in existence
through agreement and there is no automatic progression from
one to the other. The issue before the Court relates to a
claim for 'promotion.' For a promotion to take place a
vacancy must exist. There is no vacancy at this time so
neither of the candidates can be promoted. If the Union claim
were to be conceded it would (a) undermine the entire College
grading structure and system leaving the College open to
numerous similar potential claims from other categories; (b)
raise the cost structure of the College without any increased
return and (c) lead to the extinction of the archivists grade
2 and possibly other similar grades.
DECISION:
6. The Court is satisfied that the Rights Commissioner acted
correctly in investigating this dispute in that it was concerned
with promotion and the manner in which applications for promotion
are dealt with. The Rights Commissioner was not entitled to treat
with rates of pay arising from any recommendation he might make on
the matter in dispute.
Having considered the submission from both parties and in
particular noting that no vacancy for a Grade 1 exists and that
there is no automatic progression between the grades, the Court is
of the view that the appeal made by the College is well founded.
The Court accordingly upholds the appeal and so decides.
~
Signed on behalf of the Labour Court
Evelyn Owens
_______________________
10th March, 1989. Deputy Chairman
P.F./J.C.